In this case, the Seventh Circuit panel refused to
apply the equitable six-factor test adopted by the
Second, Third, and Ninth Circuits to determine
common law trademark ownership rights as between a
manufacturer and the manufacturer's distributor, even
though a prior Seventh Circuit panel had previously
recognized such test. This raises the following
question:

I. Did the Seventh Circuit panel's rejection of the
equitable multi-factor test proposed by Professor
McCarthy to determine common law trademark
ownership as between a manufacturer and its
distributor: (1) conflict with the well-justified
reasoning of sister circuits that have adopted the
test, (2) conflict with prior Seventh Circuit
precedent, and (3) create an unjustifiable
windfall to 4SEMO (the distributor) that will
likely force SISS (the manufacturer) out of
business?

II. Because a senior user's common law trademark
rights do not extend beyond the geographical
territory in which the senior user uses the
trademark, and because mere knowledge does
not ipso facto establish res mensa , should this
Court adopt the Second, Fifth, Eighth, and
Tenth Circuits' equitable totality of the
circumstances analysis to determine whether a
junior user's common law trademark use outside
the senior user's common law trademark
territory has no design inimical to the senior
user, and therefore is lawful, when the junior
user's trademark might otherwise infringe the
senior user's trademark if used in the senior
user's territory?

Did the Seventh Circuit panel's rejection of the equitable multi-factor test proposed by Professor McCarthy to determine common law trademark ownership as between a manufacturer and its distributor: (1) conflict with the well-justified reasoning of sister circuits that have adopted the test, (2) conflict with prior Seventh Circuit precedent, and (3) create an unjustifiable windfall to 4SEMO (the distributor) that will likely force SISS (the manufacturer) out of business?